Friolet v. Friolet, (1998) 201 N.B.R.(2d) 118 (CA)

• Judge: Ayles, Drapeau and Larlee, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: Friday May 01, 1998
• Jurisdiction: New Brunswick
• Citations: (1998), 201 N.B.R.(2d) 118 (CA)

Friolet v. Friolet (1998), 201 N.B.R.(2d) 118 (CA);

    201 R.N.-B.(2e) 118; 514 A.P.R. 118

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1998] N.B.R.(2d) TBEd. JN.012

Sylvio Friolet (adverse claimant/appellant) v. Algernon Friolet (applicant/respondent)

(73/97/CA)

Indexed As: Friolet v. Friolet

New Brunswick Court of Appeal

Ayles, Drapeau and Larlee, JJ.A.

June 3, 1998.

Summary:

A father died intestate. Those entitled to his estate included his sons, Algernon and Sylvio. In 1954, Algernon took possession of the family property. Although Sylvio claimed his share of the property in the years that followed, he never undertook the neces­sary steps. Sylvio also removed gravel from the land occupied by Algernon without the latter questioning his right to do so. Alger­non eventually refused to transfer part of the land to Sylvio. Algernon applied for a cer­tificate of title. Sylvio objected.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported in volume [1997] N.B.R.(2d) Supp. No. 23, allowed the application for quieting of title with costs. Sylvio appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Real Property - Topic 5720

Title - Extinguishment, prescription and adverse possession - Continuity of posses­sion - Interruption of continuity - General -Two brothers were tenants in common of a parcel of land - One of the brothers entered upon the land in 1954 and applied for a certificate of title based on adverse possession - The other brother objected, arguing that there had been re-entry upon the land interrupting the limitation period -The New Brunswick Court of Appeal held that the appropriate test to determine whether a tenant in common has re-entered upon the land is the following: the re-entry must be without the occupier's permission and in the capacity of owner - This ap­proach was appropriate to a dispute be­tween co-owners since it did not require the dispossessed co-owner to violate the rights of the owner in possession by oust­ing him - See paragraphs 26 to 31.

Real Property - Topic 5720

Title - Extinguishment, prescription and adverse possession - Continuity of posses­sion - Interruption of continuity - General -Friolet died intestate - Those entitled to his estate included two sons, Algernon and Sylvio - Algernon took possession of the family property in 1954 - He applied for a certificate of title based on adverse posses­sion - Sylvio objected, relying on section 45 of the Limitation of Actions Act - According to Sylvio, Algernon had verbal­ly acknowledged his title during the 20 year period - The New Brunswick Court of Appeal dismissed Sylvio's argument - An acknowledgement of the true owner's title by the person in possession must be in writing and signed in order to interrupt the limitation period - See paragraph 37.

Real Property - Topic 5724

Title - Extinguishment, prescription and adverse possession - Continuity of posses­sion - Interruption of continuity - Acts constituting - Friolet died intestate - Those entitled to his estate included two sons, Algernon and Sylvio - Algernon took possession of the family property in 1954 -Although Sylvio claimed his share of the property in the years that followed, he never undertook the necessary steps - Sylvio also removed gravel from the land without Algernon questioning his right to do so - Algernon eventually refused to transfer part of the land to Sylvio - Alger­non applied for a certificate of title - Sylvio objected, claiming there had been sufficient re-entry upon the land to inter­rupt the limitation period - The trial judge held that the removal of gravel by Sylvio was not an assertion of his right of owner­ship and that there was not sufficient re-entry to avoid extinguishment of Sylvio's title - The New Brunswick Court of Ap­peal dismissed the appeal.

Real Property - Topic 5751

Title - Extinguishment, prescription and adverse possession - Adverse possession - General - Friolet died intestate - Those entitled to his estate included two sons, Algernon and Sylvio - Algernon took possession of the family property in 1954 -Although Sylvio claimed his share of the property in the years that followed, he never undertook the necessary steps - Sylvio also removed gravel from the land without Algernon questioning his right to do so - Algernon eventually refused to transfer part of the land to Sylvio - Alger­non applied for a certificate of title - Sylvio objected - The trial judge granted the application - There was adverse posses­sion in as much as Algernon had actual possession, exclusive, uninterrupted, open, visible and notorious occupation for a period of 20 years - The New Brunswick Court of Appeal dismissed the appeal.

Cases Noticed:

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1, refd to. [para. 10].

Giffen (Bankrupt), Re, [1998] 1 S.C.R. 91; 222 N.R. 29; 101 B.C.A.C. 161; 164 W.A.C. 161, refd to. [para. 10].

Lifshen, Re (1977), 25 C.B.R.(N.S.) 12 (Sask. Q.B.), refd to. [para. 10].

Thibodeau v. Assomption, compagnie mutuelle d'assurance-vie (1994), 156 N.B.R.(2d) 1; 401 A.P.R. 1 (T.D.), refd to. [para. 10].

Canadian Pacific Ltd. v. Paul et al. (1983), 50 N.B.R.(2d) 126; 131 A.P.R. 126 (C.A.), refd to. [para. 15].

Cyr v. Ste-Anne de Madawaska (Village) (1971), 4 N.B.R.(2d) 107 (C.A.), refd to. [para. 16].

Appleby, Re; Appleby v. MacLeod (1982), 42 N.B.R.(2d) 427; 110 A.P.R. 427 (C.A.), refd to. [para. 16].

Cormier v. Cormier (1989), 102 N.B.R.(2d) 13; 256 A.P.R. 13 (C.A.), refd to. [para. 16].

McGrath v. McGrath (1992), 26 R.P.R.(2d) 42 (Nfld. T.D.), refd to. [para. 18].

Landry v. Landry (1991), 117 N.B.R.(2d) 181; 295 A.P.R. 181 (C.A.), refd to. [para. 19].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 19].

Schwartz v. Canada - see Minister of Na­tional Revenue v. Schwartz.

Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241, refd to. [para. 20].

Chittick v. Gilmore (1974), 9 N.B.R.(2d) 38; 1 A.P.R. 38 (C.A.), refd to. [para. 21].

Irving (J.D.) Ltd. v. McSorley (1993), 139 N.B.R.(2d) 69; 357 A.P.R. 69 (C.A.), refd to. [para. 21].

Ludlow and Blissfield (Parish) v. Dean (1996), 175 N.B.R.(2d) 292; 446 A.P.R. 292 (C.A.), refd to. [para. 21].

Commission de l'aménagement agricole (N.-B.) et Desjardins v. Côté (1996), 179 N.B.R.(2d) 378; 455 A.P.R. 378 (C.A.), refd to. [para. 27].

Piper v. Stevenson (1913), 12 D.L.R. 820 (Ont. C.A.), refd to. [para. 29].

Donovan v. Herbert (1884), 4 O.R. 635 (C.A.), refd to. [para. 31].

Coffin v. North American Land Co. (1891), 21 O.R. 80 (C.A.), refd to. [para. 31].

Rooney v. Petry (1910), 22 O.L.R. 101 (H.C.), refd to. [para. 31].

Nixon v. Walsh (1911), 2 O.W.N. 1218 (C.A.), refd to. [para. 31].

Gagne v. Day & Ross Ltd. (1974), 8 N.B.R.(2d) 60 (C.A.), refd to. [para. 35].

Anderson v. Anderson (1906), 37 N.B.R. 432 (C.A.), refd to. [para. 37].

Hoyt v. Hoyt (1990), 110 N.B.R.(2d) 34; 276 A.P.R. 34 (C.A.), refd to. [para. 37].

Statutes Noticed:

Limitation of Actions Act, R.S.N.B. 1973, c. L-8, sect. 29, sect. 32, sect. 60 [para. 12]; sect. 45 [para. 37]; sect. 59(1) [para. 13].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (2nd Ed. 1985), vol. 2, p. 1509 [para. 14].

Bastarache, Michel, and Boudreau Ouellet, Andréa, Précis du droit des biens réels (1993), pp. 250 [para. 38]; 255 [para. 37]; 257 [para. 17].

Williams, Jeremy S., Limitation of Actions in Canada (2nd Ed. 1980), pp. 106 [para. 29]; 215, 216 [para. 37].

Counsel:

Basile Chiasson, for the appellant;

Léo J. Doiron, for the respondent.

This appeal was heard on May 1, 1998, by Ayles, Drapeau and Larlee, JJ.A., of the New Brunswick Court of Appeal. Drapeau, J.A., delivered the following decision on behalf of the Court of Appeal on June 3, 1998.